dissenting:
I respectfully dissent, because I am of the opinion that this court’s disposition does not accurately reflect the facts contained in the record. I disagree with numerous portions of the court’s opinion, as to both the facts reported and its conclusions of law. The court’s recitation of facts is slanted toward the proposition that Kimberly should have been awarded custody, by including only the facts that support its conclusion. Despite the expansive statement of the facts in the court’s opinion, it does not contain all of the facts necessary for a fair and impartial review of the trial court’s judgment.
This dissent will focus on the trial court’s fundamental errors, while commenting on a few of this court’s errors.
TRIAL COURT’S ERRORS
The trial court’s rulings concern mixed issues of law and fact. A mixed question of law and fact is reviewed under the clearly erroneous standard. Knorst v. State Universities Civil Service System, 325 Ill. App. 3d 858, 861 (2001). The clearly erroneous standard of review lies between the manifest weight of the evidence standard and the de novo standard and, as such, it grants some deference to the decision. AFM Messenger Service, Inc. v. Department of Employment Security, 198 Ill. 2d 380, 392 (2001). “[W]hen the decision *** [is of] a mixed question of law and fact, the *** decision will be deemed ‘clearly erroneous’ only where the reviewing court, on the entire record, is ‘left with the definite and firm conviction that a mistake has been committed.’ ” AFM Messenger, 198 Ill. 2d at 395, quoting United States v. United States Gypsum Co., 333 U.S. 364, 395, 92 L. Ed. 746, 766, 68 S. Ct. 525, 542 (1948); see Moss v. Department of Employment Security, 357 Ill. App. 3d 980, 984-85 (2005); Quinlan v. Stouffe, 355 Ill. App. 3d 830, 836 (2005).
A court generally seeks an expert’s opinion to assist it in making a custody determination, and a court cannot disregard medical testimony that is not countervailed by other competent testimony. In re Violetta B., 210 Ill. App. 3d 521, 535 (1991). The trial court cannot second-guess an expert’s opinion, without basis. To do so would be contrary to the evidence before the court. The best interest of the child is the paramount consideration, and qualified and competent medical testimony concerning the child for whom the custody decision is being made must not be disregarded when determining what is in that child’s best interest. In re C.B., 248 Ill. App. 3d 168, 179 (1993). Both Dr. Hynan and Dr. Hatcher, who were certainly experts qualified to opine as to the best interest of Kira, did render opinions regarding the health, and possible medical, concerns for Kira if Kimberly were to be awarded custody. Both experts recommended that Christopher be awarded custody of Kira, without condition or similar concerns for Kira if Christopher had custody.
It is important to know that Dr. Hynan and Dr. Hatcher rendered specific opinions as to why Kimberly should not be awarded sole custody. They could not have been more clear. As a result of their testing, interviews, and consideration of a plethora of professional factors, both doctors offered similar reasons for their opinions that Christopher be awarded custody. Both doctors recited their concerns with Kimberly’s ability to fully and properly attend to Kira’s mental and physical needs, including possible medical needs, because of Kimberly’s particular personality type, which included impulsivity, narcissism, difficulties with authority, and problems with frustration tolerance. Both doctors questioned Kimberly’s ability to openly promote the relationship between Kira and Christopher. Neither doctor found any significant concerns about Christopher. (Also, this court fails to mention that Dr. Hynan was concerned with the effect that Che, Kira’s half brother, might have on Kira because of Che’s reported psychological difficulties, including the report of Che’s threatened suicide.)
Evidence of the erroneous findings first comes to light by a review of the trial court’s opinion letter. The trial court’s six-page letter of opinion sets forth reasons for disregarding the opinions of both its own expert witness, Dr. Hynan, and Kimberly’s chosen expert witness, Dr. Hatcher.
“The Court has reviewed their [Drs. Hynan’s and Hatcher’s] written reports and listened closely to their testimony and concludes that the primary basis of that opinion was the pendency at the time they did their evaluation[s] of a Petition then on file by [Kimberly] to remove Kira from the State of Illinois and relocate her to North Carolina. Each of those experts acknowledged that that factor weighed heavily in [his] opinion, and each acknowledged that the fact that the Petition has been withdrawn by [Kimberly] would affect the weight to be given to that factor in the basis of their opinions.”
However, the record clearly indicates that the trial judge was incorrect when he wrote that critical portion of his opinion letter. The report of proceedings indicates that at the close of the first day of Dr. Hynan’s testimony, the trial court itself asked Dr. Hynan: “Dr. Hynan, would your opinion relative to custody be any different had removal not been an area that you looked into at the time that you did your evaluation?” Dr. Hynan answered: “It would not be any different.” Similarly, the report of proceedings from another trial day indicates that Dr. Hatcher was asked by Christopher’s attorney: “Did your opinion rest in any part on the issue of removal?” Dr. Hatcher answered: “No. The issue had been settled.” This testimony alone illustrates that the trial court’s ultimate custody decision was mistaken, when reviewed under the clearly erroneous standard, because the court incorrectly weighed the testimony by incorrectly factoring nonexistent impeachment of the reasons for the doctors’ custody opinions. This court’s opinion inexplicably fails to consider the trial court’s improper factoring, and it compounds the problem because it relies upon the trial court’s erroneous statements in affirming the judgment.
There is substantial material and unimpeached evidence in the record to rebut the assertion that Dr. Hynan’s and Dr. Hatcher’s custody opinions and recommendations favoring Christopher were based “primarily” upon Kimberly’s removal petition. Dr. Hynan’s December 3, 2004, seven-page, single-spaced rebuttal report, done at the court’s request, is replete with specific reasons, information, test result comments, and an item-by-item rebuttal to the assertions and opinions of Dr. Alexander and Dr. Thomas. Notably, the report concludes with Dr. Hynan’s remarks that the recommendation in his February 19, 2004, report, which recommended that custody be awarded to Christopher, “[does] not change at all after a review of [Drs. Alexander’s and Thomas’s] reports.” Both of Dr. Hynan’s reports contain extensive, specific details supporting his custody opinion. Consistent with the record, Dr. Hynan’s two written reports dispel the conclusion that Dr. Hynan based his custody opinion primarily or solely upon Kimberly’s removal petition. Both Drs. Hynan and Hatcher stated that the removal petition was indicative of the likelihood that Kimberly would not foster a strong relationship between Christopher and Kira, but was not the sole basis for their custody opinions.
Dr. Hatcher’s rebuttal report, also done at the request of the court, supported his original custody opinion that Christopher should be awarded custody of Kira, and it responded to the reports of Drs. Alexander and Thomas. A portion of the rebuttal report is representative of its contents.
“Dr. Thomas’[s] report essentially opined that I did not properly consider the psychological test results in light of the parties being involved in a custody evaluation, corroborative information regarding personality traits measured on the test, and the ethnicity of Kim Woodson. I disagree. I did, in fact, consider all of those factors in my deliberations and they helped form my opinion in the 604.5 custody report.”
The importance and role of the local mandatory divorce evaluation rule, local court rules 15.18 (A)(1) and (A)(2) (18th Judicial Cir. Ct. Rs. 15.18(A)(1), (A)(2) (eff. March 1, 1998)), which had produced a professional custody opinion, was virtually cast aside by the court’s ruling based upon an incorrect finding of fact.
It was error for the trial court to incorrectly disregard the notable expertise, exhaustive analysis, and extensive custody evaluation reports and testimony of Dr. Hatcher and Dr. Hynan and other evidence in the record in awarding Kira’s custody to Kimberly.
In the trial court’s opinion letter, the court said, “this case is exceedingly close on the issue of custody.”
However, the court did not look to the extensive reports and testimony of its own custody expert witness or Kimberly’s custody expert witness. Considering that the court determined that the case was exceedingly close and improperly discounted the substantial evidence of the expert’s preference in favor of the father, it logically follows that a different result would have occurred if the trial court had not improperly discounted and failed to consider the expert evidence.
Additionally, the trial court erred in basing its custody award on race. If the trial court disregarded the opinions of Drs. Hynan and Hatcher, as it did, upon what information or opinions did the trial court rely? The only references to race were contained in the limited testimony of Dr. Alexander and Dr. Thomas. The court had limited the opinions of Dr. Alexander and Dr. Thomas to matters of impeachment of the other experts’ testing techniques. The court stated that it would not consider their testimony relative to substantive custodial recommendations, because they had virtually no experience with child custody evaluations, custody opinions, or even the statutory guidelines for determining custody. Both those experts testified about the general effects of raising a child of color in this society, with Dr. Thomas’s testimony being based primarily upon literature that she, herself, authored. Even though Dr. Alexander had not interviewed Christopher or Kira, he rendered an opinion (negatively) about Christopher anyway.
Both Drs. Alexander and Thomas offered only general critiques about the tests that Drs. Hynan and Hatcher had done. The criticisms amounted to inaccurate comments that Drs. Hynan and Hatcher should have considered the race and circumstances of the parties when they conducted their tests. Although the trial court barred Kimberly’s two controlled witnesses from offering opinions about the best interest or custody of Kira, the court’s letter of opinion clearly referenced and deferred to their testimony about Kimberly’s greater ability to raise a biracial child. Immediately after stating that it would not use race as the determinative factor, as Dr. Alexander and Dr. Thomas suggested be done, the court, in the "next sentence of the opinion letter, stated:
“However, it is true that [Kimberly] will be able, if awarded custody, to provide Kira with a breadth of cultural knowledge and experience that [Christopher] will not be able to do. Kira will have to learn to exist as a biracial individual in a community and society that is sometimes hostile to such an individual.”
The following paragraph of the court’s opinion letter states:
“The Court finds each of the parties to be fit and proper persons to be awarded her custody and to exercise full visitation and parenting rights but awards custody to [Kimberly] based on her slightly better ability to provide for the emotional needs of the child which may be occasioned by her special circumstances as discussed above [her ability to provide a breadth of cultural knowledge and experience to help Kira learn to exist as a biracial individual].”
I believe that these words can be read to mean only that the trial court awarded custody to Kimberly solely on the premise that she was an African-American person who will be able to provide Kira with a breadth of cultural knowledge and experience that Christopher could not, due to his race. Despite this court’s weak protest to the contrary, the remarks in the trial court’s letter of opinion show that the court’s decision for custody improperly hinged on the sole factor of race: that only an African-American person can properly raise a biracial child in this society.
An award of custody based solely on race is impermissible, as an improper exercise of a trial court’s discretion. Fountaine v. Fountaine, 9 Ill. App. 2d 482, 486 (1956). The United States Supreme Court has also specifically rejected the consideration of racial biases, or the effects of racial prejudice and classifications, in child custody matters as a violation of the equal protection clause of the United States Constitution (U.S. Const., amend. XIV). Palmore v. Sidoti, 466 U.S. 429, 432, 80 L. Ed. 2d 421, 425, 104 S. Ct. 1879, 1881-82 (1984). Thus, the trial court here erroneously used race as its basis for awarding custody.
Finally, the trial court erred in allowing in any capacity the opinion testimony of both Dr. Alexander and Dr. Thomas. Dr. Hynan and Dr. Hatcher, the experts with the stipulated expertise in rendering custody opinions, refuted the race and gender opinions that Dr. Alexander and Dr. Thomas rendered while attacking Drs. Hynan’s and Hatcher’s testing, evaluations, and custody recommendations. Both Dr. Hynan and Dr. Hatcher testified that the bases for the opinions offered by Dr. Alexander and Dr. Thomas had no validity or known acceptance of any kind within their scientific field. Accordingly, the opinions rendered by Dr. Alexander and Dr. Thomas did not meet the Frye test. See Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). In Illinois, the admission of expert testimony is governed by the standard first expressed in Frye. In re Commitment of Simons, 213 Ill. 2d 523, 529 (2004); Donaldson v. Central Illinois Public Service Co., 199 Ill. 2d 63, 76-77 (2002).
Commonly called the “general acceptance” test, the Frye standard dictates that scientific evidence is admissible at trial only if the methodology or scientific principle upon which the opinion is based is “sufficiently established to have gained general acceptance in the particular field in which it belongs.” Frye, 293 F. at 1014. In this context, “general acceptance” does not mean universal acceptance, and it does not require that the methodology in question be accepted by unanimity, consensus, or even a majority of experts. Simons, 213 Ill. 2d at 530. Instead, it is sufficient that the underlying method used to generate an expert’s opinion is reasonably relied upon by experts in the relevant field. Simons, 213 Ill. 2d at 530. Significantly, the Frye test applies only to “new” or “novel” scientific methodologies. Simons, 213 Ill. 2d at 530. “Generally, however, a scientific technique is ‘new’ or ‘novel’ if it is ‘original or striking’ or does ‘not resembl[e] something formerly known or used.’ ” Donaldson, 199 Ill. 2d at 79, quoting Webster’s Third New International Dictionary 1546 (1993).
Drs. Alexander’s and Thomas’s opinions should have been admitted only if their methods were sufficiently established to have gained general acceptance in the particular field in which they belong. Because their methods were not affirmatively shown to be generally accepted in the field of child custody, their opinions should not have been considered by the trial court. Frye, 293 F. 1013. This court cites Snelson v. Kamm, 204 Ill. 2d 1 (2003), for the proposition that, if a party does not request a Frye hearing, the party has waived the Frye issue on appeal. I believe that the holdings of Snelson do not apply to the mixed questions of fact and law in this case. See Quinlan, 355 Ill. App. 3d at 836. Also, Christopher did obtain a hearing on his motion to bar the testimony of Dr. Thomas, for reasons consistent with Frye (and In re Marriage of Jawad, 326 Ill. App. 3d 141 (2001)). The court granted Christopher’s motion in part, and it allowed Dr. Thomas to testify only about the testing techniques of Drs. Hynan and Hatcher. Also, even if a party’s inaction constitutes a waiver of an issue, the party’s waiver does not limit our own jurisdiction. Carlson v. City Construction Co., 239 Ill. App. 3d 211, 243 (1992). I believe that the Frye objection remains. The trial court not only abused its discretion in allowing such unprecedented testimony; it later improperly based its decision on evidence that it said it would not consider for that purpose.
APPELLATE COURT’S ERROR
This court’s opinion misses the basic issues in its presentation, which includes a lengthy array of pseudo-facts, used to shore up support for its conclusions. The court even inserts its own speculations and conclusions as fact. For example, “The trial court apparently found Dr. Hatcher’s and Dr. Hynan’s testimony to be slightly impeached ***.” (Emphasis added.) 367 Ill. App. 3d at 465. Also, “Dr. Thomas’s knowledge, experience, education, and skill *** undoubtedly aided the trier of fact in understanding the evaluations ***.” (Emphasis added.) 367 Ill. App. 3d at 461. The trial court referenced only the removal petition as a basis for disregarding Dr. Hynan’s and Dr. Hatcher’s custody opinions. There is nothing of record that indicates that the trial court believed that Dr. Hynan or Dr. Hatcher was impeached by the “novel” opinions of Drs. Thomas and Alexander.
This court notes that the Frye test applies only to principles that are new or novel. But the court then again employs its unsupported speculations and conclusions to exclude Dr. Thomas’s testimony from having to meet the Frye test: “Furthermore, we do not believe that the admission of Dr. Thomas’s testimony offended the principles espoused in Frye. Dr. Thomas’s opinions were not based on new or novel methods.” (Emphasis added.) 367 Ill. App. 3d at 461. There is nothing in the record to suggest that the bases for the opinions of Dr. Alexander and Dr. Thomas were anything but novel, at best, and racist, at worst.
CONCLUSION
Because the record clearly shows that the trial court’s findings were against the manifest weight of the evidence, and that the trial court made errors of law, the record compellingly calls for reversal of the trial court’s custody award to Kimberly, and for the award of Kira’s custody to Christopher as being in Kira’s best interest.